Computer technology: grabbing the early advantage.

Computer technology is changing the way law is practiced in and out of the courtroom. Lawyers need to be prepared for the change.

Techniques for good lawyering haven't changed much in the past decade. Technology for good lawyering has. Although a lot of people talk about using computer technology at trial, I find it a more powerful ally before trial. Used properly, it can help you win your case before trial just as surely as it can help you win at trial. All you need are the right tools and the know-how to use them.

Aside from having a case with good facts, the best way to win your case before trial is to be better prepared than your adversary. I use technology from the moment I open a case. The tools I use sometimes vary, but they include an electronic trial notebook, an image-enabled database, spreadsheets, risk-analysis diagrams, and color graphics. Although I can't say these tools always win the day for me, they help--big time.

The key to any complicated case is organization. From the moment you open any case, you begin to acquire data. Sometimes, collecting and sorting through this data can seem overwhelming. There are witnesses to interview, documents to review, pleadings to file, and deadlines to meet. But staying organized is the name of the game.

The electronic trial notebook is my key to organization. Years ago, I used three-ring binders to keep my cases organized. Today a computer does the job. Sadly, no single computer product has yet been developed that can take the place of my paper-based system, but by combining several software packages, I can get the same result.

Assembling my electronic trial notebook begins with inexpensive outline software called ECCO Pro.(1) It is sold in most computer stores and is marketed as a personal information manager.

We all know how to make an outline. Most of us learned this somewhat tedious skill in grade school. When it comes to creating outlines on computers, though, you can forget much of what you learned. This is because outlining software allows the computer to become a thinking tool. You can not only organize concepts and ideas, you also can build on them, actually creating lists of cross-examination questions, opening statements, or master case strategies.

To give you an idea of how this might look, see Figure 1, a sample outline of notes from a recent deposition (with changes made to protect the innocent), on the next page.

[Figure 1 ILLUSTRATION OMITTED]

The ECCO Pro outlining software allows you to group a series of outline notepads by subject. Each tab displayed along the bottom of the screen roughly corresponds with the section dividers I previously used in my paper-based trial notebooks. I can store the same information that I put in three-ring binders "behind" each tab. But the information is more accessible in ECCO Pro because I can search it using a "find" command and because I can store dozens of these notebooks in my laptop.

For example, I use the "Witnesses" section to store information about each witness in a case. I then use ECCO Pro's column features to keep track of things like completed interviews, depositions, summaries, and subpoenas. Because the information can be stored in customizable columns, ECCO Pro acts more like a database or spreadsheet than a simple outliner.

By entering information about witnesses, such as the date they were deposed, you can sort and filter information in an almost endless variety of ways. The "Column" feature gives you a powerful tool to organize and access the data you enter in each outline you have created.

When handling a multiparty case, I use ECCO Pro's "PhoneBook" feature--which is like a customizable Rolodex--to keep address information about witnesses, clients, and opposing counsel.

I use the "Calendar" feature to keep on top of docketing information. The calendar allows me to organize case deadlines by day, week, or month. And because the computers in our office are "networked," all the lawyers who are working on the same case can simply access the file to be kept apprised of important deadlines.

ECCO Pro also allows users to link word-processing files and images to outlines. I like to keep copies of pleadings in my trial notebook, and I do this electronically through links to Adobe Acrobat, an excellent image and full-text retrieval program.(2)

Databases and imaging software

For years, I have used databases to keep track of case documents. Even in small cases, I have found it helpful to organize exhibits and key documents in a simple database. If nothing else, doing this will allow you to print out an exhibit list easily. If you link the documents to relevant witnesses, you can retrieve documents quickly when you need to prepare for a particular witness's testimony.

When I had a DOS system, I used Q&A3 and, later, Summation(4) to create databases. I now use Microsoft Access(5) which seemed trickier to use at first but offers more flexibility and integrates well with Microsoft's word-processing software, Word, and spreadsheet software, Excel(6) Access also allows users to customize their screens to make it easy to use this product. For example, rather than rely on Access's somewhat arcane search commands, we created our own easy-to-use search wizard.

I have linked Access to Adobe Acrobat. Pulling up a document image in Access is as easy as clicking the shutter release on a camera.

My firm chose Acrobat over other imaging packages because it offers full-text search capabilities. Through some form of magic, Adobe hides the text--which has been processed by Optical Character Recognition (OCR)--behind the image. As a result, you can search for words in a document as easily as you would with word-processing software, and "hits" show up as highlighted words on the document.

Because I had heard that OCR text was highly unreliable, I was skeptical about the utility of full-text searching capability at first. I am now a convert. Adobe's OCR engine works amazingly well, and its search engine is as good as any I have seen.

When you use software packages like these to combine databases with document images and full-text search capability, you can have instant access to information in any document in any case. This will help you to be better prepared for depositions and trial and is likely to give you settlement leverage. An opponent who sees how in control you are of a case is more likely to want to settle rather than compete with your technological wizardry at trial.

Spreadsheets

Most lawyers don't "do numbers," although they should. Spreadsheets can be powerful persuasive tools. And recent technological advances have made them so easy to create, there is no excuse not to use them.

Let me give you an example of how spreadsheets can help you better understand cases. A man was put on a respirator in the intensive care unit of a local hospital for about a month. Shortly after the hospital staff removed him from the respirator, he went into cardiopulmonary arrest. Although he was revived, he suffered permanent brain damage. The man's wife, my client, wondered whether the arrest could have been prevented.

Hospital records provided a jumble of information. They contained figures for respiratory rate, heart rate, oxygen saturation, and blood pressure. When we listed the numbers side by side on a spreadsheet, there seemed to be a pattern, but nothing was clear or compelling. The respiratory rate seemed to vary during the final hour, as did the heart rate and blood pressure.

Using Microsoft Excel's Chart Wizard, I plotted the vital signs to see if a pattern emerged from the numbers. The results appear in Figure 2.

[Figure 2 ILLUSTRATION OMITTED]

Suddenly, a clear pattern emerged. Vital signs were relatively stable until about midnight, when they started rising and failing erratically. We argued that the intensive care nurse should have spotted the warning signs well before the patient went into arrest. Had the nurse reattached the nearby respirator, there would have been no arrest, and hospital staff could have weaned the patient from the respirator later.

In another case, a client won a judgment of about $550,000 at trial. The defense appealed and won on a minor issue, which required a recalculation of damages. In anticipation of a settlement offer, my client wanted to know what the new discounted judgment would be, including the amount of post-judgment interest.

I used a spreadsheet to solve the riddle. First, I recalculated the judgment based on the appellate court's instructions to make explicit findings for inflation and discount rates. Then, I used Easy Interest, a pre- and post-judgment interest calculator we developed using Excel, to find out how much the final judgment would be.

These kinds of spreadsheet tools are not rocket science. If you take the time to learn the basics, you will find you can do all sorts of useful calculations. My office even uses a basic Excel template to create budgets and track actual time and money spent on cases. This has been helpful when clients have wanted to know this, and it has helped us keep track of how long it takes to complete litigation tasks.

Risk-analysis software

In many cases, I use risk analysis software to help my clients analyze settlement prospects. These programs work something like a spreadsheet, but they allow you to diagram key aspects of a case and assign probabilities to different options. You can then assign values to the possible outcomes and have the software calculate the expected value of a case.

After we won the $550,000 judgment described above, the defense offered to settle for $300,000, with an appeal as the alternative prospect. Turning conservative in the post-trial atmosphere, my client started seriously considering the offer. I thought it was much too paltry and told him so. He asked me for an analysis of our prospects.

I then created a risk-analysis diagram to graphically depict my view of the various possibilities available. See Figure 3 for the decision-tree diagram.

[Figure 3 ILLUSTRATION OMITTED]

In my judgment, the case was worth far more than $300,000, even factoring in the risk of reversal and a new damages trial. The diagram allowed my client to see the strengths and weaknesses of our position and make an informed decision. In rejecting the settlement offer, we sent opposing counsel a copy of the tree to back up our firm counteroffer of $465,000. You can imagine what she said to her clients about it.

I regularly give decision trees to the opposition in cases where it might encourage settlement. Doing this not only impresses my clients, it also throws my adversaries off stride, especially when their clients ask them why they can't respond in kind.

Graphics

Sooner or later discovery winds down, and the trial date approaches. This is the time to consider summary judgment.

The key to summary judgment, like winning at trial, is simplification. If you can convince the judge that your case is simple, you have a good chance. Words can help, but they seldom paint a complete picture of the case from your client's point of view. I use color graphics to enhance the verbal message, and I put them in the brief.

Judges spend their lives looking at boring copy. Adding a bit of color will not only get their attention, it will help you make your point.

I once represented the defendant in a complicated accounting malpractice case. The essence of our motion for summary judgment was an argument that my client had no duty during the course of a company audit to discover improprieties relating to the company's joint venture investment. I decided it would be helpful to use pictures to illustrate the theory.

I added a time line graphic in the brief to reinforce the point that the audit happened so long after the wrongdoing took place that my client's discovering it would have made no difference to the company's liability. Without question, we could have made the point through the written part of the brief, and we did. But the picture added an additional level of interest, and it clarified the issue as no words could. The summary judgment motion prevailed.

You can use graphics in mediation statements as well. In a case involving a leaky slurry wall, we wanted to show the mediator how we thought the wall could be fixed. In anticipation of trial, we created a simple animation showing how a slurry wall works (don't ask, you don't want to know).

The point of the animation was to show how the alleged seepage problem could be resolved. We could have simply told the mediator about it, but we thought it would be more helpful to show him our proposed solution. We took a frame from the animation and placed it in a letter we sent to him.

Judges are not allowed to grade briefs or give feedback, but a few judges have passed messages through their clerks to me about graphics I've used. Several judges have indicated that they like the graphics because the illustrations provide variety and clarify the issues quickly.

Of course, no summary judgment is won nor settlement obtained solely with the use of graphics. But they can help, and they are not difficult to create. All you need is a modern word-processing program like Word and a good color printer. Your clients will appreciate the extra effort. Your opponents will be envious.

The key to winning before trial is preparation. If you are prepared during discovery and show it, your opponent will more likely want to settle. If you fumble throughout the pre-trial process, you better plan on winning at trial, not before.

Computer technology can help you prepare for trial, and, consequently, avoid it. All it takes is a little financial investment and the time and inclination to learn to use the technological tools. The investment in time and money is well worth it--to you and to your clients.

Notes

(1.) Netmanage, Inc., 10725 North De Anza Blvd., Cupertino, CA 95014, [phone], [e-mail].

(2.) Adobe Systems, P.O. Box 1034, Buffalo, NY 14240-1034, [phone], fax [phone].

(3.) Symantic Corp., P.O. Box 10849, Eugene, OR 97440, [phone].

(4.) Summation Legal Technologies, Inc., 100 Bush St., Ste. 2000, San Francisco, CA 94104, [phone], [e-mail].

(5.) Microsoft Corp., One Microsoft Way, Redmond, WA 98052-6399, [phone].

(6.) Id.

John Tredennick Jr. is a litigation partner with Holland and Hart, which has offices throughout the Rocky Mountains. Opinions expressed in this article are the author's and do not reflect an endorsement of any product by TRIAL or ATLA.